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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - [I.D. 032207A]

# AGENCY:

 National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

# ACTION:

 Notice of issuance of an incidental harassment authorization.

# SUMMARY:

 In accordance with provisions of the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that an Incidental Harassment Authorization (IHA) to take marine mammals, by harassment, incidental to conducting an on-ice marine geotechnical operations in the U.S. Beaufort Sea, has been issued to ConocoPhillips Alaska, Inc (CPAI) for a period of one year.

# DATES:

 This authorization is effective from April 15, 2007, until April 14, 2008.

# ADDRESSES:

                         A copy of the application, IHA, an Environmental Assessment (EA) for the proposed action, and a list of references used in this document may be obtained by writing to P. Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3225, or by telephoning one of the contacts listed here (see                         **FOR FURTHER INFORMATION CONTACT**                        ).                    

# FOR FURTHER INFORMATION CONTACT:

 Shane Guan, Office of Protected Resources, NMFS, (301) 713-2289, ext 137 or Brad Smith, Alaska Region, NMFS, (907) 271-5006.

# SUPPLEMENTARY INFORMATION:

## Background

                    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361*et seq.*) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.                          ( print page 19696)    

Permission shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses, and that the permissible methods of taking and requirements pertaining to the mitigation, monitoring, and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as ”...an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”

Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the United States can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Except for certain categories of activities not pertinent here, the MMPA defines “harassment” as:

any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].

Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny issuance of the authorization.

## Summary of Request

                    On November 29, 2006, NMFS received an application from CPAI for the taking, by harassment, of a small number of ringed seals (                    *Phoca hispida*) incidental to conducting geotechnical portions of a site clearance survey just north of Cross Island, in the spring of 2007. The site clearance location will be on the outer continental shelf (OCS) and State of Alaska leases in the U.S. Beaufort Sea. The proposed operation will be active 24 hours per day and use a conventional geotechnical drilling rig.                

The purpose of the site clearance is to confirm that the seafloor has soil and surface characteristics that will support the safe set-down of a drill rig, and long-term occupation of the site by such a vessel.

                    The geographic region of the proposed geotechnical activity encompasses 2 13 km2                     (5 mi2                    ) areas in the south central Alaska Beaufort Sea on the fast ice. The region is about 3 miles (4.8 km) north of Cross Island at approximately 147°57′ W and 70°32′ N. There will also be a sea ice route directly from Deadhorse to the site, which will be about 24 km (15 miles) long and 0.01 km (35 ft) wide. The closest Eskimo village to the site clearance location is Nuiqsut, which is over 60 miles (97 km) away. Water depths in the proposed project area are typically less than 60 ft (18.2 m).                

The proposed geotechnical operation would use a small drill rig that runs either 5-ft (1.5-m) long augers for soil samples or 10-ft (3-m) jointed pipe to recover core samples. The drill rig would use cone penatrometers for cone penetration tests. Sea water circulation and occasionally mud systems would be used on the drill rig to stabilize the hole. This work is part of an overall shallow hazards investigation of the project.

CPAI initially planned to conduct the proposed project between February and April, 2007, however, it has postponed it until April, 2007. If the proposed project cannot be completed by the end of May 2007 due to ice conditions, CPAI will resume the project in February 2008, and complete it in April 2008, under this IHA.

                    A detailed description of these activities was published in the                     **Federal Register**                     on January 22, 2007 (72 FR 2653). No other changes have been made to these proposed activities except the project time described above.                

## Comments and Responses

A notice of receipt and request for 30-day public comment on the application and proposed authorization was published on January 22, 2007 (72 FR 2653). During the 30-day public comment period, NMFS received the following comments from one private citizen, the North Slope Borough (NSB), and the Marine Mammal Commission (Commission).

*Comment 1:*                     One private citizen opposes the project out of concern that marine mammals would be killed by the proposed project in the Beaufort Sea.                

*Response:*                     As described in detail in the                     **Federal Register**                     notice of receipt of the application (72 FR 2653, January 22, 2007), no marine mammal will be killed or injured as a result of the proposed on-ice geotechnical operations by CPAI. The project would only result Level B behavioral harassment of a small number of ringed seals. No take by Level A harassment (injury) or death is anticipated or authorized from this project.                

*Comment 2:*                     The Commission recommends that NMFS issue the IHA to CPAI, provided that CPAI be required to use trained dogs for locating ringed seal lairs and other structures. Both the Commission and the NSB recommend that trained dogs be used to detect and locate ringed seal lairs and other structures. The NSB further states that a single native hunter will not be sufficient for locating lairs and that seal breathing holes are not confined to deformed ice or pressure ridges.                

*Response:*                     While NMFS believes that the use of trained dogs to locate ringed seal lairs during on-ice geotechnical operations is the best method to detect ringed seals in winter, NMFS also believes that the use of experienced subsistence hunters should be an alternative before ringed seal pupping season, starting on March 15, if the CPAI cannot complete the project by then. As for the proposed project, only a limited number of holes in and near a small rig footprint would be drilled, one single experienced hunter is sufficient for detecting seal lairs before March 15. CPAI requested use of an Inupiat hunter since it was successfully usedat McCovey for a rolligon operation. Allowing a proven method of using an experienced hunter prior to the ringed seal pupping season is a reasonable alternative to trained dogs. Even though experienced hunters may not be as efficient to detect breathing holes, NMFS does not believe this will cause any mortality or seriously injure ringed seals. However, for activities that occur after March 15th, CPAI will use trained dogs to locate seal lairs.                

*Comment 3:*                     The Commission assumes that CPAI has explored the need for an authorization from the U.S. Fish and Wildlife Service (FWS) to take polar bears (Ursus maritimus) incidental to the proposed activities. If not, the Commission states, NMFS may wish to advise CPAI to do so.                

*Response:*                     CPAI states that it has applied for an IHA for the incidental takes of polar bears from the FWS, and that the permit is pending.                

*Comment 4:*                     The Commission recommends that the authorization specify that the operations be suspended immediately if a dead or injured ringed seal is found in the vicinity of the operations and the death or injury could be attributable to the applicant's activities. The Commission further recommends that any suspension should remain in place until NMFS has (1) reviewed the situation and determined that further deaths or serious injuries are unlikely or (2) issued regulations authorizing such takes under section 101(a)(5)(A) of the MMPA.                

*Response:*                     NMFS agrees, and the IHA condition specified that operations be                           ( print page 19697)                        suspended if a mortality or injury of a marine mammal is detected that may be the result of CPAI's activity.                

*Comment 5:*                     The NSB points out that CPAI did not provide noise information associated with cone penetration test (CPT). The NSB questions whether CPT is somewhat similar to pile driving, which could create a substantial amount of sound in the environment.                

*Response:*                     CPAI states that the CPT work is accomplished using hydraulics. Consistent pressure, provided by hydraulics, is necessary to accurately measure soil properties. Therefore, CPAI states that noise levels generated by CPT work is negligible compared to that of pile driving.                

*Comment 6:*                     The NSB questions NMFS' conclusion that the effects of the proposed geotechnical operations would be short-term within the context of disturbance of ringed seals. The NSB further questions how long any disturbance of seals as a result of the proposed operations might be expected to persist.                

*Response:*                     As described in detail in the                     **Federal Register**                     notice (72 FR 2653, January 22, 2007) the proposed geotechnical operations would only last for two weeks during a 3-month period within two small areas of 13 km2 (5 mi2). The analyses of the proposed on-ice geotechnical operations showed the potential to disturb and temporarily displace some ringed seals within the proposed project areas during this short time period. Therefore, NMFS believes that the effects of this action are expected to be limited to short-term and localized behavioral changes involving relatively small numbers of ringed seals.                

*Comment 7:*                     The NSB points out that in CPAI's application, CPAI suggested it only needs an IHA if the work extends past the later part of March, “prior to the birthing season for ringed seal pups.” The NSB states that ringed seals are present in the CPAI's operational area throughout the ice-covered season and not just from late March through the ice-covered period. The NSB further states that it is extremely likely that CPAI's operations are causing Level B harassment of ringed seals, assuming they have already begun, and will have impacts in March.                

*Response:*                     Generally, NMFS recommends IHAs for activities that occur after the start of pupping season, and with the exception of ice road construction, activities conducted prior to that time do not require IHAs. Considering the number of other activities that take place on the ice without IHAs (e.g., snow mobiles), NMFS considers this appropriate. However, CPAI is applying for an IHA for the entire period when its on-ice operations would be conducted. CAPI indicated that it has not started its on-ice geotechnical operations and that it will not do so prior to obtaining an IHA.                

*Comment 8:*                     The NSB does not agree that ringed seals are the only marine mammals that might be taken incidentally as a result of CPAI's on-ice operations. The NSB is concerned that bowhead whales (                    *Balaena mysticetus*) and belugas (                    *Delphinapterus leucas*) could be potentially taken as a result of the proposed action. NSB states that bowheads and belugas typically begin passing by Barrow in mid-April, and that in a typical year, bowheads and belugas could be off the project area by mid-April within several days of passing Barrow. The NSB further states that in 2007, ice is very light and there are considerable areas of open water between Barrow and the Bering Sea. The NSB also states that bearded seals (                    *Erignathus barbatus*) will also be in the Beaufort Sea in April.                

*Response:*                     The nature of the proposed on-ice geotechnical operations would require ice thickness of at least 50 in (1.3 m) to support the heavy equipment and personnel. This is not typical habitat for cetacean species, including bowhead and beluga whales, thus, no cetacean species is likely to be found in the vicinity of the project area. In addition, the proposed project will not use any impact source sources nor airguns, so the generated underwater noises due to the activities are negligible and will not impact on any cetacean species in the vicinity. CPAI will not operate in the area where ice condition is getting thin to allow open lead due to safety concerns.                

In regards to bearded seals, NMFS does not believe these species would be affected as a result of the proposed on-ice geotechnical operations due to their rare occurrence in the proposed project areas, and the small size of these areas.

*Comment 9:*                     The NSB points out that CPAI primarily relied on ringed seal data collected at the Northstar development island (Moulton                     *et al.*, 2002) for their estimates of numbers of takes of ringed seals. CPAI states that these data are helpful but given that CPAI's activities are in deep water and farther offshore, there is potential for actually a greater numbers of seals in the project area. The NSB suggests that site-specific data on ringed seals are needed for CPAI's project area.                

*Response:*                     In reviewing and making a determination on the issuance of an IHA to SOI for its proposed on-ice R&D project, NMFS used the most recent available and best scientific data regarding ringed seal density in the proposed project area from works conducted by Kelly and Quakenbush (1990), Frost an Lowry (1999), and Moulton                     *et al.*, (2002), which was based on studies at the Northstar development. These studies cover a large area of the Beaufort Sea, and the ringed seal population estimates derived from these studies are representative of this species abundance in the proposed project area. NMFS believes that these data provide the best scientific information on ringed seal density and abundance in the proposed project area.                

## Description of the Marine Mammals Potentially Affected by the Activity

                    Ringed seals are the only species of marine mammal that may be present in the proposed project area during the site clearance period. Ringed seals are not listed under the Endangered Species Act (ESA) or designated as depleted under the MMPA. Other marine mammal species under NMFS' jurisdiction that seasonally inhabit the Beaufort Sea, but are not anticipated to occur in the project area during site clearance operations, include the bowhead whales (                    *Balaena mysticetus*), beluga whales (                    *Delphinapterus leucas*), bearded seals (                    *Erignathus barbatus*), and spotted seals (                    *Phoca largha*). While some of these species begin to enter Beaufort Sea off Point Barrow from the Chukchi Sea during April, the project area is over 160 nm (296 km) east of Point Barrow, thereby making it highly unlikely these species would occur in the project area during the proposed operations. Polar bears also frequent in the Beaufort Sea, but they are not addressed in this application because they are managed by the FWS. CPAI is applying for an IHA for the incidental take of polar bears from the FWS.                

                    A detailed description of ringed seals can be found in the Angliss and Outlaw (2005), which is available at the following URL:                     *http://www.nmfs.noaa.gov/​pr/​pdfs/​sars/​ak2005.pdf*. A more detailed description of this species within the proposed action area is provided in the January 22, 2007,                     **Federal Register**                     (72 FR 2653). Therefore, it is not repeated here.                

## Potential Effects on Marine Mammals and Their Habitat

                    The proposed on-ice geotechnical operations have the potential to disturb, including the temporary displacement of, some ringed seals within the proposed project area. Incidental take may result from short-term disturbances by noise and physical activities associated with soil borings, CPT, and rolligon supported support and logistics activities. Pup mortality could occur if                           ( print page 19698)                        any of these animals were nursing and displacement were protracted. However, it is unlikely that a nursing female would abandon her pup given the normal levels of disturbance from the proposed activities, potential predators, and the typical movement patterns of ringed seal pups among different holes. Seals also use as many as four lairs spaced as far as 3,437 m (11,276 ft) apart. In addition, seals have multiple breathing holes. Pups may use more holes than adults, but the holes are generally closer together than those used by adults. This indicates that adult seals and pups can move away from site clearance activity. All anticipated takes would be Level B harassment, involving short term, temporary changes in behavior including displacement by ringed seals. The number of seals estimated to be taken is calculated based on the most recent density data obtained during ringed seal surveys conducted within the geographic area of the planned operation. Moulton                     *et al.*                     (2002) reported that ringed seal densities on landfast ice of Alaskan Beaufort area range from 0.39 - 0.63 seal/km2                    .                

                    The size of the proposed project area is 26 km2                     plus 0.32 km2                     for the travel corridor between the site and Deadhorse with water depths greater than 3 m (9.8 ft) below the sea ice. Areas where water depths are less than 3 m (9.8 ft) were excluded from the calculation since ringed seals typically do not occur in these shallow areas (Moulton                     *et al.*, 2002). The length of the travel corridor associated is about 16 km (10 mi) and the calculation for its width was doubled (70 ft or 200 m) to account for adjustment of the corridor during the program due to any changes in ice condition. Therefore, it is estimated that between 10 - 17 ringed seals could be taken by Level B harassment as a result of the proposed geotechnical operations. This estimated take number represents less than 0.004 - 0.007 percent of the ringed seal population (estimated minimum 249,000 seals) in the eastern Chukchi and Beaufort seas area. The actual take is likely to be lower as the IHA requires mitigation and monitoring measures to be implemented in the proposed action. No take by Level A harassment (injury) or death is expected or authorized.                

The proposed geotechnical operation is not expected to cause any permanent impact on habitat and the prey used by ringed seals. All surface activities will be on sea ice, which will breakup and drift away following spring breakup. Any spills on the ice would be small in size and cleaned up before completing the operations. Similarly, all materials from the camp and drilling activities will be removed from the site before completion of operations. Drilling will have a negligible impact on the seafloor, since the bore holes will be small and widely spaced, and they will naturally fill in over time due to sediment movement by currents. The operation should have no effect on ringed seal prey species since most disturbances will be on sea ice. Areas containing ice conditions suitable for lairs will be avoided by the rolligons to prevent any destruction of the habitat.

## Mitigation and Monitoring

All activities will be conducted as far as practicable from any observed ringed seal lairs. Upon commencement of the on-ice geotechnical project, CPAI will establish a route along the proposed travel corridor and work areas to discourage ringed seals from building lairs within the corridor later.

For all activities conducted after March 15, trained dogs will be used to detect and locate ringed seal lairs and other seal structures in the travel corridor and work areas where water depth exceeds 3 m (9.8 ft) under the ice. For activities conducted before March 15, an experienced Inupiat hunter will be hired to serve as a marine mammal observer (MMO) to locate potential lairs and breathing holes in the travel corridor and work areas where water depth exceeds 3 m (9.8 ft) under the ice. The MMO will ride in the lead rolligon. Locations will be flagged, Global Positioning System (GPS) coordinates taken and then delineated on a map.

On subsequent trips after seal surveys, rolligon drivers will use the map, pre-programmed GPS coordinates and/or flags to avoid potential lair habitat and breathing holes when traveling the corridor and work areas. The completed map will be provided to NMFS.

## Potential Effects on Subsistence

The primary subsistence village in the region is Nuiqsut, which is over 60 miles (97 km) away from the proposed project area. Most seal hunting by the village is off the Colville river Delta, between Fish Creek to the west and Pingok Island to the east (Fuller and George, 1997). Seal hunting predominately occurs in the open water during summer, when seals are more readily accessible from small boats (Fuller and George, 1997). In addition, almost all subsistence seal hunts occur during June through August. If a subsistence hunter is encountered in the project area, action will be taken to divert the rolligon away from the hunter. In addition, CPAI will meet with Nuiqsut representatives before commencing geotechnical operations in 2007. The meeting(s) will fulfill the requirement in 50 CFR 216.104(a)(12). The proposed operations will be modified, where possible and practical, to reflect the concerns of the villages and hunters. Taking into account this and all mitigation and monitoring, the proposed geotechnical operations will not have an unmitigable adverse impact on availablity of marine mammals for subsistence uses.

## Reporting

A final report will be submitted to NMFS within 90 days of completing the geotechnical project. The report will contain detailed description of any marine mammal, by species, number, age class, and sex if possible, that is sighted in the vicinity of the proposed project area; location and time of the animal sighted; whether the animal exhibits a behavioral reaction to any on-ice activities or is injured or killed.

## ESA

NMFS has determined that no species listed as threatened or endangered under the ESA will be affected by this activity and issuing an incidental harassment authorization under section 101(a)(5)(D) of the MMPA to CPAI for this on-ice geotechnical project.

## National Environmental Policy Act (NEPA)

NMFS prepared an Environmental Assessment in March 2007 and issued a Finding of No Significant Impact on the proposed action.

## Determinations

For the reasons discussed in this document and in the identified supporting documents, NMFS has determined that the impact of the on-ice geotechnical operations would result, at worst, in the Level B harassment of small numbers of ringed seals, and that such taking will have a negligible impact on this species. NMFS also finds that the action will not have an unmitigable adverse impact on the availability of this species for taking for subsistence uses.

In addition, no take by Level A harassment (injury) or death is anticipated or authorized, and harassment takes should be at the lowest level practicable due to incorporation of the mitigation measures described in this document.

## Authorization

                    NMFS has issued an IHA to CPAI for the Level B harassment of small number of ringed seals incidental to conducting on-ice geotechnical operations in the U.S. Beaufort Sea, provided the                           ( print page 19699)                        previously mentioned mitigation, monitoring, and reporting requirements are incorporated.                

Dated: April 13, 2007.

James H. Lecky,

Director, Office of Protected Resources, National Marine Fisheries Service.

[FR Doc. E7-7471 Filed 4-18-07; 8:45 am]

BILLING CODE 3510-22-S